Ministry of Natural Resources Office of the Minister 99 Wellesley Street West Room 6630, Whitney Block Toronto ON M7A 1W3 Tel: 416-314-2301

Ministère des Richesses naturelles Bureau du ministre 99, rue Wellesley Ouest Bureau 6630, Édifice Whitney Toronto ON M7A 1W3 Tél.: 416 314-2301

April 30, 2025

Elizabeth Leon

FINAL DECISION made under subsection 25(14) of the Niagara Escarpment Planning and Development Act R.S.O. 1990

NEC File No.: N/R/2022-2023/59 Niagara Escarpment Hearing Office (NEHO) Case No. OLT-24-000429

Dear Elizabeth Leon:

Re: Appeal of the Niagara Escarpment Commission’s approval of an application for a development permit made by Beth Leon to construct a residential addition, including a garage and living space, attached to an existing single dwelling to be serviced by a secondary septic system and cistern on the property known as 120 Overholt Road, Town of Pelham, ON, L0S 1M0

Pursuant to section 25 of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, a Hearing Officer of the Ontario Land Tribunal, in its role as the NEHO, has conducted a hearing at which representations were made respecting the Niagara Escarpment Commission’s (NEC) decision on the above-noted application. The Hearing Officer has reported to me a summary of the representations together with their opinion on the merits of the decision.

In consideration of my review of the NEC’s decision and the Hearing Officer’s Recommendation (copy attached), I vary the decision of the NEC and direct the Niagara Escarpment Commission to issue the development permit, subject to the terms and conditions in the Hearing Officer’s report.

Sincerely,

Original signed by Minister

The Honourable Mike Harris Minister of Natural Resources

Attachment

c: Shawn Carey Director, Niagara Escarpment Commission shawn.carey@ontario.ca

Ontario Land Tribunal Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 10, 2025 CASE NO(S).: OLT-24-000429

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant: Beth Leon Respondent: Niagara Escarpment Commission Subject: Conditions of Approval for a Development Permit Application Description: To appeal conditional approval of a Development Permit Application to construct a one storey dwelling addition with attached garage and a second septic system on an existing lot with private servicing Reference Number: N/R/2022-2023/59 Property Address: 120 Overholt Road Municipality/UT: Pelham/Niagara OLT Case No.: OLT-24-000429 OLT Lead Case No.: OLT-24-000429 OLT Case Name: Leon v. Ontario (Niagara Escarpment Commission)

Heard: October 25, 2024 by video hearing

APPEARANCES:

Parties	Counsel
Elizabeth Leon	Callum Shedden, Darien Ekblad (articling student)
Niagara Escapement Commission	Demetrius Kappos, M. Timmermans (articling student)

REPORT DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Tribunal Members constitute Hearing Officers and the Tribunal functions as the Niagara Escarpment Hearing Office (“Hearing Office”) for appeals under the Niagara Escarpment Planning and Development Act, R.S.O 1990, c. N.2 (“NEPDA”).

2The Hearing Office convened an appeal hearing brought by Elizabeth Leon (“Appellant”) arising from a decision made by the Niagara Escarpment Commission (“NEC”) granting a development permit relating to the lands located at 120 Overholt Road (“Subject Property”), in the Town of Pelham, Niagara Region.

3The Subject Property is located at the southeast corner of Overholt Road and Haist Street. Frontage along Overholt Road is 405 metres (“m”) and along Haist Street is 475 m. A three-storey single detached dwelling exists on the Subject Property on a private septic system. The majority of the Subject Property contains significant woodland and plantation. The lands to the west contain a golf club and the lands to the east, north, and south are a combination of agricultural and residential land uses.

4The Subject Property is designated as Escarpment Protection Area (“EPA”) and Escarpment Natural Area under the Niagara Escarpment Plan (“NEP”) and is within the Area of Development Control.

5The development permit allows for the construction of a one-storey dwelling addition (242.2 square metres) with a garage, living space, and a second septic system. The NEC approved the development permit with 15 conditions. Appendix 1 contains the conditions as issued in the Notice of Decision by the NEC on April 9, 2024.

VOIR DIRE

6Prior to this Hearing, the Appellants notified the Hearing Office that they would be contesting the qualification of the NEC’s expert witness. A voir dire was held to determine the matter.

7The Appellants challenged Mr. Sandy Dobbyn’s eligibility to provide opinion evidence on the basis of Mr. Dobbyn’s qualifications as an expert.

8Mr. Dobbyn’s curriculum vitae shows that he has had multiple work positions that involve aspects of planning. His two most recent positions involved land use and environmental planning. His earlier positions did not include land use planning. The majority of his early work experience could be classified as environmental planning. In his current position, he is a Senior Strategic Advisor for the NEC, where he interprets and advises planners on interpreting the NEP. His work involves a lead role on plan amendments and conducting planning analysis of applications. He was previously a senior planner with the NEC. Throughout his time at the NEC, he has been involved with hundreds of applications and four plan amendments. He has been involved in six Tribunal hearings but has never been qualified as an expert previously.

9The Appellants submitted that Mr. Dobbyn should not be qualified as an expert in land use planning based on the “non-exhaustive list of factors” in R. v. Pham, 2013 ONSC 4903 (“R. v. Pham”):

• the manner in which the witness acquired the special skill and knowledge upon which the application is based;
• the witness' formal education (i.e. degrees or certificates);
• the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);
• the witness' membership and participation in professional associations related to his or her proposed evidence;
• whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;
• the witness' experience in the proposed area(s);
• whether the witness has taught or written in the proposed area(s);
• whether, after achieving a level of expertise, the witness has kept up with the literature in the field;
• whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;
• whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and
• whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

10The Appellant argued that Mr. Dobbyn’s lack of experience in land use planning is compounded by no formal education in land use planning and no membership in planning associations. They argue he has never taught any courses in land use planning and has not previously been qualified as an expert witness. They submitted that his work is more environmental planning and not land use planning. When asked whether the issues of this hearing are land use planning specific, Mr. Dobbyn’s stated that the majority of the issues are about policy and legislative interpretation, not land use planning.

11The NEC argued that R. v. Pham is a case about drugs and police and therefore not relevant to this hearing. They submitted that it is appropriate to consider paragraph 27 of R. v. Mohan, 1994 CanLII 80 (SCC), which states “the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”. The NEC feels that Mr. Dobbyn’s short tenure in land use planning (2.5 years) is bolstered by the over 200 hundred land use development cases that he has been involved with.

12They go on to state that Ontario (Ministry of Municipal Affairs and Housing) v. Ontario (Municipal Board), [2001] ONSC No. 922 (QL) indicates that:

Persons whom the tribunal considers to have special training or experience in the field may offer opinions… ‘expertise’ in this sense is a modest status achieved when the ‘expert’ possesses special knowledge and experience going beyond that of the trier of fact. Where this threshold level exists, deficiencies in expertise can affect the weight of the ‘expert’ evidence, but do not normally affect its admissibility.

13Finally, they suggest that if the Hearing Office does not qualify Mr. Dobbyn as an expert in land use planning matters, that he be qualified as an expert in environmental planning matters, with a particular expertise in interpretation of the NEP.

14The Hearing Office finds that Sandy Dobbyn does not meet the requirements to be qualified as an expert in land use planning matters, but he does have relevant expertise to the matters at hand and his specialized knowledge relating to the NEP is necessary for determining a fair resolution to these matters. Mr. Dobbyn has acknowledged his ability to be impartial, independent, and absent of bias. The Hearing Office qualifies Sandy Dobbyn to act as an expert witness in environmental planning matters, with a particular expertise in interpretation of the NEP.

ISSUES

15The Appellant has appealed Condition 13, as listed in Appendix 1. Condition 13 prescribes that the Appellant must enter into an agreement on the title of the Subject Property to prohibit more than one dwelling unit on the Subject Property prior to the issuance of the development permit.

16The Appellants have submitted that the main issues in this Appeal are that Condition 13 is not appropriate, does not meet the objectives of the NEPDA, has no purpose or utility for the approval of the development permit, is an overreach of the NEC’s authority, and is not good land use planning. The Appellant seeks to have the condition removed from the conditional approval of the development permit.

SUBMISSIONS

17The Parties submitted, and the Hearing Office accepts, a Joint Book of Documents, marked as Exhibit 1a, an Acknowledgement of Expert Duty Form for Craig Lamour, marked as Exhibit 1b, and an Agreed Statement of Facts, marked as Exhibit 1c.

18Craig Lamour, a Registered Professional Planner and retired Director of Community and Development Services for the Town of Niagara-on-the-Lake, testified with respect to the evidence set out in his witness statement, in Exhibit 1a, dated September 9, 2024. Mr. Lamour was qualified by the Tribunal to provide expert evidence in land use planning matters.

19Sandy Dobbyn, a Senior Strategic Advisor with the NEC, testified with respect to the evidence set out in his witness statement, in Exhibit 1a, dated September 6, 2024.

20Mr. Lamour testified that the original proposal for development, submitted on April 26, 2022, was to construct a one-storey addition, consisting of a living space and an attached garage. The living space would contain a mudroom, a massage room, a dining room, a bathroom, and a kitchen. An additional septic system and cistern would also be constructed to service the addition.

21The Niagara Peninsula Conservation Authority commented that the proposed addition did not meet the required setback from the top of a slope. Additionally, the NEC expressed concerns that the addition could be used as a secondary dwelling unit which is prohibited under the NEP EPA designation. Mr. Dobbyn stated that the definition of a dwelling includes one or more habitable rooms in which a kitchen, sanitary facilities, and a private entrance are available.

22Both witnesses confirmed that the Appellant revised the design after learning of these concerns. The floor layout was modified to both move the building to meet the required setback from the top of the slope and to remove the kitchen from the proposed development. The Appellants submitted a statement to the NEC stating that there is no intention to use the addition as a secondary dwelling unit.

23This revised design was the one conditionally approved by the NEC with the conditions listed in Appendix 1.

24However, it is still the NEC’s position that the proposed addition could be used as a secondary dwelling unit in contravention of the NEP EPA designation.

25Mr. Dobbyn testified that the proposed addition has sanitary facilities and a private entrance. He also stated that the unfinished basement could be converted to a kitchen at a future date which would make this addition a secondary dwelling unit. Because of this, Mr. Dobbyn opined that it is necessary to put an agreement on the Subject Property title to specifically state that no secondary dwelling is allowed.

26Mr. Dobbyn stated that the title agreement would serve to notify future owners that a secondary dwelling isn’t permitted.

27Mr. Lamour pointed out that it is entirely speculative to assume that the Appellant or a future owner would develop a secondary dwelling when it is prohibited under the NEP, regardless of an agreement on the title of the Subject Property.

28Section 24(2) of the NEPDA allows the Minister to issue development permits and may include terms and conditions with them. This may include an agreement on title. Mr. Lamour testified that the ability to apply conditions is optional and at the discretion of the Minister. Both Parties agreed in Exhibit 1c that “the NEP does not contain any policy basis directing or supporting the use of a legal agreement in relation to the Application”.

29Mr. Dobbyn stated that the NEC is not restricted to only the few conditions outlined in the NEP, and the NEC may use any conditions that the Minister (or their delegate) may deem “advisable”, per section 24(2) of the NEPDA.

30Mr. Lamour contests that “advisable” is without definition and is based on the opinion of the application reviewer. Mr. Lamour testified that conditions should be based in policy. He testified that the NEP only provides specific direction in two circumstances for a legal agreement on title. The policies are for nature preserves and agricultural lands.

31Mr. Dobbyn contends that the Director makes a decision regarding conditions based on the planning analysis of an application. He stated in his witness statement that “the NEC generally does not look to the NEP for direction with respect to conditions that are applied to specific Development Permits, including a condition requiring an Agreement on Title”.

FINDINGS

32The NEC’s arguments are based around the prevention of a secondary dwelling unit. They have submitted that Condition 13 acts to mitigate the risk of a secondary dwelling unit being constructed on the Subject Property by the Appellant or a future owner. They have admitted that their concern is not based on any knowledge or intention of the Appellant to develop a secondary dwelling unit.

33The Hearing Office finds that, while the NEC is permitted to attach conditions to the issuance of a development permit, including entering into an agreement on the title as stated in section 24(2.1) of the NEPDA, Condition 13 is not appropriate in the context of this Application. The reasoning for the condition is speculative and not based on any facts that would imply that the Appellants are planning to develop a secondary dwelling unit. Furthermore, the assumption that a potential future owner would develop a secondary dwelling unit without regard for the NEP is also without merit.

34The NEC has admitted that the prohibition on secondary dwelling units is stated in the NEP, and therefore, Condition 13 does not serve to create a new limit on the proposed development or Subject Property. The Hearing Office finds that Condition 13 is redundant and an overreach of the NEC.

35The Hearing Office finds that Condition 13 is not in the public interest and is not good land use planning. The NEP clearly outlines the permitted uses of the Subject Property, and the condition serves as no additional measure of ensuring compliance.

RECOMMENDATION

36The HEARING OFFICE CONCLUDES that the Niagara Escarpment Commission decision to issue a Development Permit with conditions is incorrect and should be changed. The Niagara Escarpment Commission’s decision is therefore not confirmed, pursuant to s.25(12) of the Niagara Escarpment Planning and Development Act. The Hearing Officer recommends that the Development Permit be approved with modified conditions. Specifically, Condition 13 should be revoked from the conditions required prior to issuing the development permit.

“A. Snowdon”

A. SNOWDON HEARING OFFICER Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

APPENDIX 1

Conditions of Approval 120 Overholt Road N/R/2022-2023/59

1. Development shall occur in accordance with the Terms and Conditions of the Development Permit.

2. The Development Permit shall expire three (3) years from the date it has been issued unless the development has been completed in accordance with the Development Permit.

3. No site alteration of the existing contours of the property including the placement or stockpiling of fill (i.e., excess or imported soil) on the property is permitted with the exception of that identified within the development envelope in accordance with the Final Site Plan.

4. No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the Final Site Plan.

5. If development has commenced under a Development Permit, any/all disturbed areas of land or soil shall be re-vegetated and stabilized to the satisfaction of the Niagara Escarpment Commission on or before the date of expiry of the Development Permit.

6. Development shall proceed in accordance with the recommendations of the Slope Stability Assessment, prepared by WSP, dated December 12, 2022.

7. Development shall proceed in accordance with the details of the Tree Protection Plan, prepared by Trees Unlimited Forestry Consultants, dated August 9, 2023.

8. Development shall proceed in accordance with the details of the Landscape Plan, received on August 9, 2023.

9. Prior to the commencement of any development, erosion and sediment control measures (e.g., fencing, blankets, rip-rap), and/or vegetation protection fencing shall be implemented and maintained as shown on the Final Site Plan until all disturbed areas are stabilized. It is the responsibility of the landowner to implement, monitor and maintain all erosion and sedimentation control measures and vegetation protection fencing in good condition until vegetative cover has been successfully established and the development is completed.

10. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed Final Site Plan shall be submitted for Niagara Escarpment Commission approval. The following shall be included directly on the Plan:

    a. The location and design of erosion and sediment control measures (e.g., fencing, blankets, rip-rap, temporary mulch / seeding) and vegetation protection fencing.

    Development shall proceed in accordance with the details of the approved Final Site Plan.

11. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the landowner shall submit for the approval of the Niagara Escarpment Commission, final construction details, including exterior elevations, total floor area, height to peak from lowest grade, and any exterior lighting. Development shall proceed in accordance with the details of the approved Final Construction Details.

12. The dwelling shall not contain more than one dwelling unit.

13. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the Landowner shall enter into an Agreement under Section 24(2.1) of the Niagara Escarpment Planning and Development Act, in a form acceptable to the Niagara Escarpment Commission. The agreement shall be registered on title of the subject property (120 Overholt Road; Pelham Concession 6 and 7, Part Lot 2, Part Rd Allow) at the Landowner’s expense. The Agreement shall stipulate that the dwelling shall not contain more than one dwelling unit. The Landowner shall provide proof satisfactory to the Niagara Escarpment Commission that the agreement has been registered against the lands (i.e., copy of the parcel registry extract and a letter from the Landowner’s solicitor that the registration is complete), and that the Landowner under this Development Permit is the Landowner of the lands at the time of registration.

14. All exterior lighting shall be designed to be minimal, subdued, of low height, and downward facing.

15. Conditions #10, 11, and 13 must be fulfilled within eighteen (18) months (1.5 years) from the date of confirmation of the Commission’s decision or this conditional approval shall lapse and a Development Permit will not be issued.

NOTES:

a) A Development Permit does not relieve the permit holder of the requirement to obtain any other applicable permission (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, etc.).

b) The Niagara Escarpment Commission supports the protection of the night sky from excessive lighting and recommends the applicant obtain information on the use and operation of appropriate lighting fixtures in keeping with dark sky approaches.

c) Should deeply buried archaeological remains/resources be found on the property during construction activities, all activities impacting archaeological resources must cease immediately, notify the Archaeology Programs Unit of the Ministry of Citizenship and Multiculturalism (416-212- 8886) and a licensed archaeologist is required to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.

In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326-8800) must be contacted. In situations where human remains are associated with archaeological resources, MCM should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.